Based on "the will of Congress," Third Circuit panel adheres to prior ruling limiting ground for compassionate release

I noted in this recent post that a Sixth Circuit panel heard oral argument this past week to consider its precedent limiting grounds for compassionate release in light of last year's US Sentencing Commission guideline amendment allowing some "changes in the law" to serve as basis for sentence reduction under § 3582(c)(1)(A)(i).  In that post, I explained that I thought this issue of statutory interpretation should be fairly straight forward for any and all true textualists.  Today, a panel ruling form the Third Circuit in US v. Rutherford, No. 23-1904 (3d Cir. Nov. 1, 2024) (available here), reinforces my view.  The panel in Rutherford rules against the defendant not based on any determinative text, but rather based on its belief as to "the will of Congress":

We agree with the government that subsection (b)(6) in the amended Policy Statement, as applied to the First Step Act’s modification of § 924(c), conflicts with the will of Congress and thus cannot be considered in determining a prisoner’s eligibility for compassionate release.  Congress explicitly made the First Step Act’s change to § 924(c) nonretroactive.  Pub. L. No. 115-391, § 403(b), 132 Stat. 5194, 5222.  And, in Andrews, we held that it would be inconsistent “with [the] pertinent provisions of [the First Step Act],” 28 U.S.C. § 994(a), to allow the amended version of § 924(c) to be considered in the compassionate release context because “Congress specifically decided that the changes to the § 924(c) mandatory minimums would not apply to people who had already been sentenced.” Andrews, 12 F.4th at 261.  

Besides the non-textual nature of divining the "will" of Congress to rule against a defendant, this holding conflates Congress's nonretoractivity decisions in the First Step Act with its decision, in the very same Act, to expand access to compassionate release and to keep in place the broad parameters of USSC authority to set terms for compassionate release.  There is nothing at all "inconsistent" with Congress saying not everyone should automatically retroactively benefit from a particular change in law and the USSC saying that judges can consider a change in law for a select few pursuing another legal remedy.  Put more clearly and directly, the USSC's policy statement regarding compassionate release does not formally or functionally make the First Step Act change to § 924(c) retroactive to anyone, and so it is in no way inconsistent with Congress's decision not to make that change retroactive to everyone. 

I could go on and on, but Rutherford ultimately stands as another telling example of the limits of textualism when a criminal defendant is the one stressing that the text Congress enacted is in his favor.  Even if text is clear (as I think it is here), courts are ready and able to say that the "will" of Congress is more important than the text.  (Notably, the Rutherford decision seem to think the "will" of Congress only makes it a problem for district courts to consider the § 924(c) change in law as part of a compassionate release motion; other changes in law would seemingly still be permissible considerations under the USSC's policy statement.) 

I assume a motion for an en banc review in Rutherford will be next up in the Third Circuit, and it will be interesting to see if any textualists elsewhere on that court might be troubled by the panel's reliance on congressional "will" over congressional text.  A Fifth Circuit panel has gone the other way, but I surmise there could still be full court consideration there.  And the Sixth Circuit, as well as a few other circuits, may also weigh in before SCOTUS may be inclined to take up this issue.  I suspect SCOTUS review is inevitable, with "when" perhaps more of an uncertainty than "if." 

Most recent related posts:

• Split Fifth Circuit panel holds that "changes in the law" can be a basis for sentence reduction under § 3582(c)(1)(A)(i) 
• Previewing latest cases before circuit court on USSC guideline allowing some "changes in the law" to serve as basis for sentence reduction under § 3582(c)(1)(A)(i)